Definition and concept of administrative enforcement
Administrative enforcement is an important instrument in administrative law that enables public authorities to enforce administrative acts when the addressee of an official order does not comply voluntarily. The objective of administrative enforcement is the immediate realization of a lawful, enforceable official order. The administration uses special enforcement measures, which may vary depending on national legislation and administrative discretion.
Legal basis of administrative enforcement
General legal basis
The legal framework governing administrative enforcement in Germany is primarily laid out in the Administrative Procedure Act (VwVfG, §§ 62 et seq.) and the respective administrative enforcement laws of the federal government and the Länder. For specific areas of administration, particularly in police and regulatory law, there are supplementary or independent enforcement acts.
Austria and Switzerland have comparable regulations, in particular in Austria’s Administrative Enforcement Act (VVG) and the Swiss Federal Act on Administrative Enforcement Procedure (VwZG).
Requirements for application
Administrative enforcement can generally only be used once the following requirements are met:
- Finality or immediate enforceability of an administrative act: The underlying administrative act must be unappealable or declared immediately enforceable.
- Warning: In most cases, a warning is required before applying enforcement measures to give the affected party an opportunity to comply voluntarily.
- Suitability and proportionality: The use of enforcement measures must be suitable, necessary, and appropriate.
- Competence: The competent authority must order and implement the enforcement measures.
Forms of administrative enforcement
The following enforcement measures are generally available, the choice and application of which are always subject to the principle of proportionality:
Administrative fine
An administrative fine involves a significant monetary payment that may be threatened to the obligated person and, in the event of refusal, imposed in addition. It does not constitute a penalty, but a means of pressure to enforce the official order.
Substitute performance
Substitute performance is used when a substitutable act is to be carried out (for example, removing objects). In this case, the authority performs the act itself or through appointed third parties at the obligated party’s expense.
Direct coercion
Direct coercion is applied when other enforcement measures are insufficient or inappropriate. It includes physical measures by enforcement bodies (such as vacating property with police assistance).
Coercive detention
Coercive detention is another means of compelling certain actions. It is mainly found in some state enforcement laws or special statutory provisions and is ordered only under strict conditions.
Procedure of administrative enforcement
The administrative enforcement procedure essentially consists of the following phases:
- Enforceable administrative act: An effective and enforceable administrative act must exist.
- Warning: The authority must threaten to apply the enforcement measure with a reasonable deadline (except in emergencies).
- Imposition: If not complied with, the enforcement measure is imposed or applied.
- Execution: The enforcement measure is executed, for example, by carrying out the substitute performance or collecting the administrative fine.
Legal remedies against administrative enforcement
There are legal remedies against measures of administrative enforcement, particularly the remedy of objection (if permitted), as well as lawsuits before the administrative court. In urgent cases, interim relief may be granted rapidly, for example, by filing an application for suspensive effect.
Special features in police and regulatory law
In the field of police and regulatory authorities, the provisions on administrative enforcement are often particularly relevant in practice. This concerns the enforcement of measures to prevent hazards or maintain public safety, where the use of direct coercion is often permissible.
Limits and restrictions of administrative enforcement
The use of administrative enforcement is subject to strict legal limitations:
- Principle of proportionality: The authority must select an enforcement measure that is suitable, necessary, and appropriate.
- Respect for fundamental rights: In particular, interference with the physical integrity, property, or freedom of the obligated person is only permitted under lawful conditions.
- Subsidiarity: Administrative enforcement may only be applied if milder means are not sufficient.
International aspects of administrative enforcement
Comparable mechanisms exist outside German-speaking legal systems, though the rules and enforcement measures are governed by the respective national administrative law. International agreements play a subordinate role, especially concerning cross-border measures (e.g., enforcement of administrative acts from one country in another).
Summary and significance
Administrative enforcement is a central instrument for the execution of administrative acts. It allows authorities to enforce lawful and enforceable decisions by force, while the affected party is protected by numerous legal safeguards before, during, and after enforcement. The specific structure and implementation of administrative enforcement are governed by extensive legal requirements that guarantee legal protection and proportionality.
This article provides a comprehensive, structured, and detailed overview of the concept of administrative enforcement and clearly presents the key legal aspects, requirements, and protective measures.
Frequently asked questions
What requirements must be met for the issuance of administrative enforcement measures?
For the issuance of administrative enforcement measures, it is necessary that an enforceable administrative act first exists. This means that the administrative act has either become unappealable or a legal remedy against it does not have a suspensive effect. Furthermore, a warning of the enforcement measure must usually have been issued beforehand, if legally required. The warning serves to protect the rights of the affected person by giving them the opportunity to respond to the impending measure. Only if the person concerned does not fulfill their obligation voluntarily may the authority resort to enforcement. The measure must also be proportionate, meaning that it must be suitable, necessary, and appropriate to achieve the intended purpose, and must not unreasonably infringe upon the interest of the affected person.
What legal bases govern administrative enforcement?
The main legal bases for administrative enforcement are found in the administrative enforcement acts of the individual federal states as well as, at the federal level, in the Administrative Enforcement Act (VwVG) and in the Administrative Procedure Act (VwVfG). In addition, special statutory rules may apply, for instance in police law, construction law, or commercial law. These provisions detail the requirements, procedures, available enforcement measures, and remedies against enforcement actions, and specifically require strict adherence to the principle of proportionality.
What enforcement measures are available to the administration?
The administration may use various enforcement measures to implement its orders, which are exhaustively regulated by law. Typical enforcement measures include the administrative fine, direct coercion, and substitute performance. The administrative fine is a financial sanction aimed at persuading the affected party to fulfill their obligation. Substitute performance allows the authority to have a substitutable act carried out at the expense of the obligated party. Direct coercion, on the other hand, is used when physical force against persons or property is applied to execute the administrative act. The choice of enforcement measure is always based on the principle of proportionality and suitability for the respective situation.
How can affected parties defend themselves against administrative enforcement measures?
Affected parties can take legal action against enforcement measures by pursuing the administrative judicial process. As a rule, an application for interim legal protection (§ 80 para. 5 VwGO or § 123 VwGO) is possible, to restore suspensive effect or obtain a preliminary injunction. Furthermore, they may file an objection to the warning or issuance of the enforcement measure within the statutory time limits, provided these constitute administrative acts. It is also important that measures of direct coercion and the implementation of a substitute performance are generally subject to special judicial review, ensuring effective legal protection.
Are administrative enforcement measures equally applicable to private individuals and companies?
Administrative enforcement measures can generally be imposed on both natural and legal persons, provided they are addressees of an enforceable administrative act. However, some particularities must be considered when applying them to companies, such as with regard to legal representation and the attribution of obligations. In some cases, there are also special rules for certain types of companies or professional groups, for example, commercial or professional law may in some cases require the involvement of special supervisory authorities.
Is a prior hearing always required for administrative enforcement measures?
A hearing of the affected party is an essential element of due process and is generally mandatory before a burdensome administrative act is issued. However, in special danger situations — especially in urgent cases — the hearing may be waived to allow for immediate official intervention. The right to be heard also generally applies to the warning and imposition of enforcement measures, but this can be deviated from if swift enforcement is essential to protect important legal interests. As a rule, however, at least the warning of the measure is provided in writing with a statement of reasons.
